Landlord and tenant — Tenant evicted under possession order — Order set aside on appeal — Restitution of possession or payment of compensation — Compensation awarded
This was an
appeal by Lingadass Kumar which raised a question of compensation following the
setting aside of a possession order granted to his landlord, Richard Pollock,
in respect of a top-floor flat at 20 Porchester Terrace, Paddington, London W2,
by Judge Rowland at Bloomsbury and Marylebone County Court on September 5 1975.
Stephen Nathan
(instructed by H Davis & Co) represented the appellant; Paul de la Piquerie
(instructed by Macfarlanes) appeared for the respondent.
Giving
judgment, BROWNE LJ said that so far as the order for possession was concerned
it was conceded on behalf of the respondent that in the light of a decision of
the Court of Appeal in Buchmann v May (1976) 120 SJ 384 [240 EG
49, [1976] 2 EGLR 57] the appeal against the possession order must succeed. The
court, having read the papers, were quite satisfied that if that matter had
been fully argued, the appeal would have succeeded, and the concession was
absolutely right. Accordingly the court would allow the appeal against the
order for possession.
The problem in
the case arose from what had happened since then, and what should be done about
it. The judge’s order was made on September 5 1975 for possession on October 3.
No application was made for a stay of execution at the end of the hearing, nor
at any time before October 3. On October 6 a warrant for possession was issued
and notice of appeal was given on the same day. At the time the appellant was
still in possession of the premises. On October 8 his solicitor made an
application to the county court to stay the warrant. That was heard by Judge
Leslie on that date, and he granted a stay on the terms that the appellant
should pay £27 a week into court, so long as he remained in the property. On
November 4, the condition not having been complied with, the bailiffs entered
on the premises and the appellant was evicted. On January 22 1976 he filed a
notice of appeal seeking an order that he might be restored to possession of
the top-floor flat. The question was — what should the court do in view of the
fact that the appellant was no longer in possession and the respondent had
relet the premises?
The court
plainly had a discretion whether or not to order restitution of possession to
the appellant. Their power was covered under Order 59, rule 10 (4) of the Rules
of the Supreme Court by the last words ‘and the Court of Appeal may make any
order, on such terms as the court thinks just, to ensure the determination on
the merits of the real question is controversy between the parties.’ The court had ordered the payment of
compensation in somewhat similar circumstances in Tanner v Tanner
[1975] 1 WLR 1346.
The respondent
had relet the premises to a Mr Burgess for a period of five years from November
11 1975 and the court had no reason to suppose that it was not a bona fide
letting. At the time that letting was made, the respondent had been put back
into possession of the premises under what was, at that time, a valid warrant
for possession made under a valid and subsisting county court judgment. In
these circumstances it seemed to his Lordship that it would be wrong to order
the respondent to give possession back to the appellant. On the other hand, he
had no doubt that an order should be made that the appellant should receive
appropriate compensation. In the circumstances of the case the basis of that
compensation should be the financial loss shown to have been suffered by the
appellant by reason of his being evicted from the flat on November 4 last year.
That compensation should not include any element of mental suffering or
anything of that sort. It should be a purely financial calculation. It seemed
to his Lordship that the Court of Appeal could not satisfactorily decide what
the figure should be and the matter would have to be remitted to the county
court to decide what compensation should be payable. Accordingly he would allow
the appeal, set aside the order for possession and remit the matter to the
county court to assess compensation on the basis he had stated.
GEOFFREY LANE
LJ agreed.
Also
concurring, MEGAW LJ said that in agreeing that the scope of the inquiry into
the proper compensation payable should be limited to the financial loss
suffered by the appellant by reason of the eviction, it was not to be taken
that this was the only basis that would ever be appropriate.
The appeal was
allowed, the possession order set aside and the matter remitted to the county
court for an inquiry into the quantum of compensation.
Note: On March 24 1977 the county court judge to whom the question of
the amount of compensation was remitted, Judge Llewellyn, at Bloomsbury and
Marylebone County Court, assessed the compensation as follows:
|
£ |
|
|
Net rental loss |
566.87 |
|
Removal expenses |
25.30 |
|
Travelling expenses |
25.00 |
|
Bailiff’s fee |
5.00 |
|
Loss of amenity |
100.00 |
|
722.17 |
The net rental loss was calculated as the difference between the
total of the rents paid by the appellant at two addresses to which he had moved
after his eviction (having secured a protected tenancy in each case) and an
assessment of the rent he would have paid if he had remained at 20 Porchester
Terrace. The
also, as too remote, the rent charge for an unprotected tenancy at the fourth
address to which he had moved. The judge rejected a claim for additional
examination fees and loss of earnings, holding that the appellant would
probably have failed his accountancy examination in any case, apart from the
eviction disturbance, if he had taken it at the time he was evicted, and that it
would not have been sensible to take a full-time job while still trying to pass
his examination. The sum awarded for loss of amenity included disruption,
inconvenience, expenses and loss of time in searching for accommodation, and
packing for his various moves.
